Upcoming Event on King v. Burwell (in Seattle)

If you happen to be in Seattle (or will be on March 11) and you’re not already over-saturated with commentary, then please consider coming to the UW School of Law’s King v. Burwell panel discussion. Here’s the info:


King v. Burwell

Obamacare in the Supreme Court (Again)

Once again, the Supreme Court is set to examine the Affordable Care Act. After surviving a constitutional attack, the statute now faces a challenge based on its own text. Challengers claim that the plain language of the statute makes subsidies (a critical part of the ACA) unavailable on federally facilitated insurance exchanges. A panel of professors will discuss the case from the perspectives of health law, tax law, statutory interpretation, and administrative law.

Panel Presentation with Professors Sanford, Schumacher, Watts, and Ziff

Wednesday, March 11
12:30-1:20 p.m.
William H. Gates Hall, Room 119

Student sponsors: Federalist Society; American Constitution Society; Student Health Law Organization

The official flyer is here (suitable for framing)! Since we’ll have the benefit of already listening to and digesting the oral arguments, I expect this short program will provide an informative analysis from diverse doctrinal perspectives. For more in-depth analysis, feel free to check out my previous post under the King v. Burwell “tag”: https://ziffblog.wordpress.com/tag/king-v-burwell/

What the King Plaintiffs Actually Said

For those of you following the current debate about whether the King plaintiffs have standing to challenge the PPACA (either now, or if they ever had it), I figured folks might want to actually read the documents from the district court in which the plaintiffs actually made the statements and in which the statements were referenced by the plaintiffs’ attorneys. Here you go: Continue reading

A Festivus Airing of Grievances: Petitioners’ Brief in King v. Burwell

Happy Festivus everyone! As you know, a traditional Festivus celebration includes the “Airing of Grievances.”

Today, I’ll be celebrating that tradition with a list of grievances against the Petitioners’ brief in King v. Burwell, in no particular order.  Feats of Strength to follow! Continue reading

A Walk Through Halbig, King, and the ACA Litigation

Over at the Incidental Economist, Nicholas Bagley has posted an extremely useful walk through his posts on Halbig and King—the current ACA litigation that just reached the Supreme Court. If you’re new to the King-Halbig litigation, or even if you’ve been following it for some time, Bagley’s writings are “must read” material.

Ziff Notes

And because I’m unoriginal, I thought I’d do the same for my posts, now that this issue is heating up a bit: Continue reading

In King v. Burwell, the Challengers Find Their Inner Bill Clinton

It depends on what the meaning of the word “such” is. — Bill Clinton (maybe, if he were a lawyer in King v. Burwell)


The word “such” is having its fifteen minutes of fame with the recent PPACA litigation. Much of the government’s narrow textual argument hinges on the word “such”: Yes, section 1401 makes subsidies available on an exchange “established by the State.” But in the absence of a state exchange, section 1321 provides for the federal government to establish “such Exchange.” That “such” (along with numerous other contextual and structural indicators) means that the federal exchange is the functional equivalent of a state exchange when state exchanges are referenced elsewhere in the statute, including in section 1401. Continue reading

Halbig and the Problem of Creeping Constitutionalism: Cato Reflections Part V

On October 30, I was invited to participate in a Cato Institute panel discussion on Halbig, King, and related challenges to the Affordable Care Act. In the wake of the conference, I’ll be writing a few posts based on the panel discussion. If you’d like to watch the entire law-focused panel, I’ve created a C-SPAN clip here. Previous reflections at Part I (Isolationism), Part II (Textualism), Part III (The Whole-Text Canon), and Part IV (Halbig’s “Two Exchanges” Problem).

Quit hitting yourself Obamacare! Quit hitting yourself!

Quit hitting yourself Obamacare! Quit hitting yourself!

Almost twenty years ago, Justice Scalia lamented how the common-law attitude had infected other forms of legal analysis, especially statutory interpretation:

But though I have no quarrel with the common law and its process, I do question whether the attitude of the common-law judge—the mind-set that asks, “What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?”—is appropriate for most of the work that I do, and much of the work that state judges do. We live in an age of legislation, and most new law is statutory law.

Scalia, A Matter of Interpretation at 13 (emphasis in original).

Something similar has been happening with the legal challenges to tax subsidies on federal exchanges. Continue reading

The Halbig Challengers’ Biggest Textual Obstacle: Cato Reflections Part IV

On October 30, I was invited to participate in a Cato Institute panel discussion on Halbig, King, and related challenges to the Affordable Care Act. In the wake of the conference, I’ll be writing a few posts based on the panel discussion. If you’d like to watch the entire law-focused panel, I’ve created a C-SPAN clip here. Other reflections at Part I (Isolationism), Part II (Textualism), Part III (The Whole-Text Canon), Part IV (Halbig’s “Two Exchanges” Problem), and Part V (Creeping Constitutionalism).

In response to Halbig, many of the government’s defenders turned to arguments based on purpose to criticize the D.C. Circuit’s opinion. If the entire purpose of the ACA is to ensure that people get affordable healthcare, then how could a court possibly interpret the law in a manner that makes so many people ineligible for affordable healthcare?

I have been critical of these sorts of generalized purposivist arguments for a couple of reasons. First, statutory interpretation should start with the text of the statute, not an appeal to general purpose. Sure, perhaps eventually, as a double check or in close cases, one must resort to general purpose to resolve ambiguity. But before we get there we need to wrestle with the text.

Second, the challengers have an answer to the government’s generalized “purpose” argument: Sure, the general goal was to provide everyone with insurance. But Congress doesn’t blindly pursue its goals at all costs. There are compromises, incentives, and other limitations that come into play.

The challengers argue that with the ACA, Congress wanted the states to take the laboring oar in creating exchanges. But because of constitutional limits on commandeering state governments, Congress had to induce (or attempt to induce) states to set up exchanges through an incentive system: set up an exchange or your citizens won’t get any tax subsidies.

On the challengers’ view, this incentive system would work just like Medicaid. Congress bribes (but doesn’t impermissibly compel!) the states to participate in Medicaid; if they refuse, then Congress withholds funds—lots of funds. However, the challengers contend that Congress miscalculated in the ACA. Congress thought every state would jump at the change to get all of that federal subsidy money. And therefore Congress thought their plan would work: every citizen in every state would get tax subsidies and affordable insurance on a state exchange. When that supposed miscalculation came to fruition, the challengers argue that it was not the courts’ job to rewrite the statute to correct Congress’s “mistake.”

But the challengers have a big textual obstacle standing in their way: the statute’s provision for federal exchanges in section 1321.

Two Exchanges Continue reading